# C_2013274EN.01000602.xml

| 21.9.2013 | EN | Official Journal of the European Union | C 274/6 |
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Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 3 July 2013 — Harald Kolassa v Barclays Bank PLC

(Case C-375/13)

2013/C 274/12

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Harald Kolassa

Defendant: Barclays Bank PLC

Questions referred

| A. | Article 15(1) of Regulation (EC) No 44/2001
( 1 )
(the Brussels I Regulation):
1.
Is the wording ‘in matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession’ in Article 15(1) of Regulation (EC) No 44/2001 to be interpreted as meaning that:
1.1.
an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? 1.2.
(if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 15 of that regulation even if the third party from whom the consumer purchased the bearer bond acquired it for a purpose which can be regarded as being within his trade or profession, and the applicant therefore takes over the bond relationship from a non-consumer? 1.3.
(if questions 1.1. and 1.2. are answered in the affirmative) the applicant consumer can invoke jurisdiction as a consumer under Article 15 of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities and who himself is not a consumer, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? 2.
(if question 1.1. is answered in the affirmative) Does Article 15(1) of Regulation (EC) No 44/2001 also provide the basis for accessory jurisdiction of the court seised of contractual claims arising from a bond purchase for claims in tort/delict arising from the same bond purchase? | 1. | Is the wording ‘in matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession’ in Article 15(1) of Regulation (EC) No 44/2001 to be interpreted as meaning that:
1.1.
an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? 1.2.
(if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 15 of that regulation even if the third party from whom the consumer purchased the bearer bond acquired it for a purpose which can be regarded as being within his trade or profession, and the applicant therefore takes over the bond relationship from a non-consumer? 1.3.
(if questions 1.1. and 1.2. are answered in the affirmative) the applicant consumer can invoke jurisdiction as a consumer under Article 15 of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities and who himself is not a consumer, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | 1.1. | an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? | 1.2. | (if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 15 of that regulation even if the third party from whom the consumer purchased the bearer bond acquired it for a purpose which can be regarded as being within his trade or profession, and the applicant therefore takes over the bond relationship from a non-consumer? | 1.3. | (if questions 1.1. and 1.2. are answered in the affirmative) the applicant consumer can invoke jurisdiction as a consumer under Article 15 of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities and who himself is not a consumer, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | 2. | (if question 1.1. is answered in the affirmative) Does Article 15(1) of Regulation (EC) No 44/2001 also provide the basis for accessory jurisdiction of the court seised of contractual claims arising from a bond purchase for claims in tort/delict arising from the same bond purchase? |
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| 1. | Is the wording ‘in matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession’ in Article 15(1) of Regulation (EC) No 44/2001 to be interpreted as meaning that:
1.1.
an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? 1.2.
(if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 15 of that regulation even if the third party from whom the consumer purchased the bearer bond acquired it for a purpose which can be regarded as being within his trade or profession, and the applicant therefore takes over the bond relationship from a non-consumer? 1.3.
(if questions 1.1. and 1.2. are answered in the affirmative) the applicant consumer can invoke jurisdiction as a consumer under Article 15 of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities and who himself is not a consumer, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | 1.1. | an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? | 1.2. | (if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 15 of that regulation even if the third party from whom the consumer purchased the bearer bond acquired it for a purpose which can be regarded as being within his trade or profession, and the applicant therefore takes over the bond relationship from a non-consumer? | 1.3. | (if questions 1.1. and 1.2. are answered in the affirmative) the applicant consumer can invoke jurisdiction as a consumer under Article 15 of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities and who himself is not a consumer, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | | | | |
| 1.1. | an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? | | | | | | | | | | |
| 1.2. | (if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 15 of that regulation even if the third party from whom the consumer purchased the bearer bond acquired it for a purpose which can be regarded as being within his trade or profession, and the applicant therefore takes over the bond relationship from a non-consumer? | | | | | | | | | | |
| 1.3. | (if questions 1.1. and 1.2. are answered in the affirmative) the applicant consumer can invoke jurisdiction as a consumer under Article 15 of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities and who himself is not a consumer, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | | | | | | | | | | |
| 2. | (if question 1.1. is answered in the affirmative) Does Article 15(1) of Regulation (EC) No 44/2001 also provide the basis for accessory jurisdiction of the court seised of contractual claims arising from a bond purchase for claims in tort/delict arising from the same bond purchase? | | | | | | | | | | |

| B. | Article 5(1)(a) of Regulation (EC) No 44/2001 (the Brussels I Regulation):
1.
Is the wording ‘in matters relating to a contract’ in Article 5(1)(a) of Regulation (EC) No 44/2001 to be interpreted as meaning that:
1.1.
an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? 1.2.
(if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 5(1)(a) of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? 2.
(if question 1.1. is answered in the affirmative) Does Article 5(1)(a) of Regulation (EC) No 44/2001 also provide the basis for accessory jurisdiction of the court seised of contractual claims arising from a bond purchase for claims in tort/delict arising from the same bond purchase? | 1. | Is the wording ‘in matters relating to a contract’ in Article 5(1)(a) of Regulation (EC) No 44/2001 to be interpreted as meaning that:
1.1.
an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? 1.2.
(if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 5(1)(a) of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | 1.1. | an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? | 1.2. | (if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 5(1)(a) of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | 2. | (if question 1.1. is answered in the affirmative) Does Article 5(1)(a) of Regulation (EC) No 44/2001 also provide the basis for accessory jurisdiction of the court seised of contractual claims arising from a bond purchase for claims in tort/delict arising from the same bond purchase? |
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| 1. | Is the wording ‘in matters relating to a contract’ in Article 5(1)(a) of Regulation (EC) No 44/2001 to be interpreted as meaning that:
1.1.
an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? 1.2.
(if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 5(1)(a) of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | 1.1. | an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? | 1.2. | (if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 5(1)(a) of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | | | | |
| 1.1. | an applicant, who has acquired a bearer bond as a consumer on the secondary market and now makes claims against the issuer of the bond based on prospectus liability, for breach of information and control obligations, and based on the bond terms and conditions, can invoke that ground of jurisdiction, if, by purchasing the security from a third party, the applicant has entered derivatively into the contractual relationship between the issuer and the original subscriber of the bond? | | | | | | | | |
| 1.2. | (if question 1.1. is answered in the affirmative) the applicant can invoke the wording of Article 5(1)(a) of that regulation even if he himself is not the holder of the bond, but the third party, whom the applicant contracted to acquire the securities, holds it in his own name in trust for the applicant in accordance with their agreement, and owes the applicant only a contractual obligation of delivery? | | | | | | | | |
| 2. | (if question 1.1. is answered in the affirmative) Does Article 5(1)(a) of Regulation (EC) No 44/2001 also provide the basis for accessory jurisdiction of the court seised of contractual claims arising from a bond purchase for claims in tort/delict arising from the same bond purchase? | | | | | | | | |

| C. | Article 5(3) of Regulation (EC) No 44/2001 (the Brussels I Regulation):
1.
Are capital market-related prospectus liability claims, and claims based on breach of obligations to protect and advise in connection with the issue of a bearer bond, claims in tort, delict or quasi-delict within the meaning of Article 5(3) of Regulation (EC) No 44/2001?
1.1.
(if question 1. is answered in the affirmative) Does the same apply if a person who is not himself the holder of the bond, but has only a contractual claim for delivery against the holder who is holding the bond in trust for him, asserts such claims against the issuer of the bond? 2.
Is the wording ‘the place where the harmful event occurred or may occur’ in Article 5(3) of Regulation (EC) No 44/2001 to be interpreted as meaning that, when a security is purchased on the basis of deliberately misleading information,
2.1.
the place where the damage occurred is taken to be the domicile of the person suffering the loss, being the place where his assets are concentrated? 2.2.
(if question 2.1. is answered in the affirmative) Does the same apply if the purchase order and the transfer of value can be revoked until settlement of the transaction, and settlement took place in another Member State sometime after the withdrawal from the account of the person suffering the loss? | 1. | Are capital market-related prospectus liability claims, and claims based on breach of obligations to protect and advise in connection with the issue of a bearer bond, claims in tort, delict or quasi-delict within the meaning of Article 5(3) of Regulation (EC) No 44/2001?
1.1.
(if question 1. is answered in the affirmative) Does the same apply if a person who is not himself the holder of the bond, but has only a contractual claim for delivery against the holder who is holding the bond in trust for him, asserts such claims against the issuer of the bond? | 1.1. | (if question 1. is answered in the affirmative) Does the same apply if a person who is not himself the holder of the bond, but has only a contractual claim for delivery against the holder who is holding the bond in trust for him, asserts such claims against the issuer of the bond? | 2. | Is the wording ‘the place where the harmful event occurred or may occur’ in Article 5(3) of Regulation (EC) No 44/2001 to be interpreted as meaning that, when a security is purchased on the basis of deliberately misleading information,
2.1.
the place where the damage occurred is taken to be the domicile of the person suffering the loss, being the place where his assets are concentrated? 2.2.
(if question 2.1. is answered in the affirmative) Does the same apply if the purchase order and the transfer of value can be revoked until settlement of the transaction, and settlement took place in another Member State sometime after the withdrawal from the account of the person suffering the loss? | 2.1. | the place where the damage occurred is taken to be the domicile of the person suffering the loss, being the place where his assets are concentrated? | 2.2. | (if question 2.1. is answered in the affirmative) Does the same apply if the purchase order and the transfer of value can be revoked until settlement of the transaction, and settlement took place in another Member State sometime after the withdrawal from the account of the person suffering the loss? |
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| 1. | Are capital market-related prospectus liability claims, and claims based on breach of obligations to protect and advise in connection with the issue of a bearer bond, claims in tort, delict or quasi-delict within the meaning of Article 5(3) of Regulation (EC) No 44/2001?
1.1.
(if question 1. is answered in the affirmative) Does the same apply if a person who is not himself the holder of the bond, but has only a contractual claim for delivery against the holder who is holding the bond in trust for him, asserts such claims against the issuer of the bond? | 1.1. | (if question 1. is answered in the affirmative) Does the same apply if a person who is not himself the holder of the bond, but has only a contractual claim for delivery against the holder who is holding the bond in trust for him, asserts such claims against the issuer of the bond? | | | | | | | | |
| 1.1. | (if question 1. is answered in the affirmative) Does the same apply if a person who is not himself the holder of the bond, but has only a contractual claim for delivery against the holder who is holding the bond in trust for him, asserts such claims against the issuer of the bond? | | | | | | | | | | |
| 2. | Is the wording ‘the place where the harmful event occurred or may occur’ in Article 5(3) of Regulation (EC) No 44/2001 to be interpreted as meaning that, when a security is purchased on the basis of deliberately misleading information,
2.1.
the place where the damage occurred is taken to be the domicile of the person suffering the loss, being the place where his assets are concentrated? 2.2.
(if question 2.1. is answered in the affirmative) Does the same apply if the purchase order and the transfer of value can be revoked until settlement of the transaction, and settlement took place in another Member State sometime after the withdrawal from the account of the person suffering the loss? | 2.1. | the place where the damage occurred is taken to be the domicile of the person suffering the loss, being the place where his assets are concentrated? | 2.2. | (if question 2.1. is answered in the affirmative) Does the same apply if the purchase order and the transfer of value can be revoked until settlement of the transaction, and settlement took place in another Member State sometime after the withdrawal from the account of the person suffering the loss? | | | | | | |
| 2.1. | the place where the damage occurred is taken to be the domicile of the person suffering the loss, being the place where his assets are concentrated? | | | | | | | | | | |
| 2.2. | (if question 2.1. is answered in the affirmative) Does the same apply if the purchase order and the transfer of value can be revoked until settlement of the transaction, and settlement took place in another Member State sometime after the withdrawal from the account of the person suffering the loss? | | | | | | | | | | |

| D. | Examination as to jurisdiction — ‘doubly relevant’ facts
1.
Should the court, in the context of its examination as to jurisdiction in accordance with Articles 25 and 26 of Regulation (EC) No 44/2001, conduct a comprehensive taking of evidence in relation to disputed facts which are of relevance both for the question of jurisdiction and for the existence of the claim (‘doubly relevant facts’) or should it, when determining jurisdiction, start from the premise that the facts asserted by the applicant are correct? | 1. | Should the court, in the context of its examination as to jurisdiction in accordance with Articles 25 and 26 of Regulation (EC) No 44/2001, conduct a comprehensive taking of evidence in relation to disputed facts which are of relevance both for the question of jurisdiction and for the existence of the claim (‘doubly relevant facts’) or should it, when determining jurisdiction, start from the premise that the facts asserted by the applicant are correct? |
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| 1. | Should the court, in the context of its examination as to jurisdiction in accordance with Articles 25 and 26 of Regulation (EC) No 44/2001, conduct a comprehensive taking of evidence in relation to disputed facts which are of relevance both for the question of jurisdiction and for the existence of the claim (‘doubly relevant facts’) or should it, when determining jurisdiction, start from the premise that the facts asserted by the applicant are correct? | | |

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( 1 )  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; OJ 2001 L 12, p. 1.

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